Find a Lawyer

Civil Second Appeal No. 225 of 1965, decided on 12th August 1968.

S. 47 read with Succession Act (XXXIX of 1925), S. 214 (1)‑Execution of decree‑Judgment debtor dying after obtaining decree‑Legal representatives should obtain succession certificate as envisaged on S. 214(1), Succession Act, before proceeding with execution ‑ Outright dismissal of execution application, made by legal representative, for want of succession certificate, neither desirable nor necessary‑Execution Courts should give time to legal representatives of deceased decree holder to obtain succession certificate.

In cases where decree holder dies after obtaining the decree there is consensus of judicial opinion that the legal representa tives should obtain succession certificate before proceeding with the execution of the decree.

Outright dismissal of the execution application for want of succession certificate is neither desirable nor necessary. The appropriate procedure for the executing Court would be to give time to the legal representatives of the deceased decree‑holder to obtain succession certificate or other necessary grant before proceeding with the execution of the decree. The lower Appel late Court should, therefore, have followed this course instead of dismissing the appellants' execution application.

Bhagwan Manaji Marwadl and others v. Hiraji Premaji Marwadi A I R 1932 Bom. 516; Abdul Majid and others v. Shamsherali Fakruddfn A I R 1940 Bom. 285; Secretary of State v. Giriudra Nath Saha and others A I R 1938 Cal. 445; Sri Sri Kalyant Prasad Singh Deo Bahadur v. Mahadev Roy and others 197 I C 461; Hari Chand Radha Kishan and another v. Tara Chand A I R 1943 Pesh. 42; Jadaobai v. Puranmal and others A I R 1944 Nag. 243; Teraj Rajmal Marwadi and others v. Rampyari A I R 1938 Nag. 528 and Thoma Chacko v. Koshi Varghese and another A I R 1956 T C 183 red.

Narayana Pillai Narayana Pillai v. Eravi Narayana Panicker and others A I R 1957 T C 147; Muhammad Yusuf v. Abdur Rahim Bepari and others (1899)I L R 26 Cal. 839; Kshetra Mohan Paddar and others v. Azizullah Mea and others A I R 1920 Cal. 580; Ghulam Hussain v. Emperor A I 8.1936 Pesh. 16; Raghubir Narain Singh v. Raj Rajesh H ari Prasad Singh and others A 1 R 1957 Pat. 435 and Jooendra Kishore Sarkar v. Gajendra Kumar Nandi and others P L D 1960 Dacca 617 distinguished.

Muhammad Ali Sayeed for Appellants.

S. M. Shafi for Respondent.

Dates of hearing: 21st March and 12th August 1968.

One Mst. Khatija Begum obtained a decree for Rs. 3,400 against Haji Gulzar Ahmad, the present respondent, on account of mesne profits of an immovable property belonging to the decree‑holder and said to have been in the occupation of the respondent, and for a further sum of Rs. 299' 12 towards costs of the suit, Mst. Khatija Begum died, it was stated at the bar, after this decree was given in her favour. Her heirs and legal representatives are her husband, Fazal Hussain, and her son Zahur Ahmad. These two persons sought to execute the decree by applying to the executing Court for the arrest and detention in civil prison of the respondent. The respondent, however, took up the defence that he was entitled to adjustment of the decretal amount against his claim for a larger amount of money from Fazal Hussain and Zahur Ahmad, this claim then being under litigation in the civil Court. A further contention of the respondent was that Fazal Hussain and Zahur Ahmad had adjusted the decretal amount in their books against the respondent's claim, and, therefore, there was no justification for executing the decree which Khatija Begum had obtained against the respondent. Mr. Sadikali G. Khoja, the Civil Judge before whom the execution proceedings were instituted, made an order, on 14‑9‑1964 by which he stayed the execution proceedings pending decision of the respondent's suit against Fazal Hussain and Zahur Ahmad. This order was challenged in appeal before Mr.‑ Fazal Elahi Ansari, the then Additional District Judge at Sukkur, who, by judgment dated 7‑4‑1965, dismissed the execution application of Fazal Hussain and Zahur Ahmed on two grounds, that is, (i) the amount of Khatija Begum's decree had been adjusted by Fazal Hussain and Zahur Ahmad in their books against the respondent's claim, and (ii) the heirs of Khatija Begum, namely, Fazal Hussain and Zahur Ahmad, could not apply for the execution of the decree by reason of the provisions of section 214 (1)(b) of the Succession Act (XXXIX of 1925). Fazal Hussain and Zahur Ahmad have questioned .the aforesaid order of the Additional District Judge in this second appeal. I have heard Mr. Muhammad Ali Sayeed, the learned Advocate for the appellants and Mr. S. M. Shafi, the respondent's learned Advocate at length. In my opinion, the first of the aforesaid grounds on which the appellant's execution application was dismissed by the lower appellate Court cannot be upheld. It is an admitted position that during the trial of the suit the present respondent had raised the plea that the amounts due from him to Khatija Begum on account of mesne profits had been adjusted against his claim for a larger amount of money against the present appellants. This claim of the respondent was against Aijaz Tanneries, of which, it is stated, Fazal Hussain and Zahur .Ahmad are the owners, and the adjustment is alleged to have been made in the account books of this firm. It appears that this plea was overruled by the trial Court which gave a decree for mesne profits in favour of Khatija Begum. Thus, the plea of adjustment raised by the respondent had for all practical purposes been rejected by the trial Court which decided Khatija Begum's suit. The same plea could not again be set up by the respondent in the proceedings for execution of the decree given to Khatija Begum, particularly in view of the fact that the claim which the respondent says he has against Fazal Hussain and Zahur Ahmed, is in fact the claim of the firm in which respondent is said to be a partner. I would therefore hold that the lower appellate Court fell into error in dismissing the appellants' execution application on the ground of the alleged adjustment of the decretal amount said to have been made in the books of Aijaz Tanneries.

2. With regard to the second ground on which the learned Additional District Judge proceeded to dismiss the execution application, the legal position does not appear to be in doubt in any way. It would be convenient to reproduce here subsection (1) of section 214 of the Succession Act, which reads as under:

"214.‑(1) No Court shall‑

(a) pass a decree against a debtor of a deceased person for payment of his debt to a person claiming on succession to be entitled to the effects of the deceased person or to any part thereof, or

(b) proceed, upon an application of a person claiming to be so entitled, to execute against such a debtor a decree or order for the payment of his debt, except on the production, by the person so claiming, of‑

(i) a probate or letters of administration evidencing the grant to him of administration to the estate of the deceased,

or

(ii) a certificate granted under section 31 or section 32 of the Administrator‑General's Act, 1913, and having the debt mentioned therein, or

(iii) a succession certificate granted under Part X and having the debt specified therein, or

(iv) a certificate granted under the Succession Certificate Act, 1889, or

(v) a certificate granted under Bombay Regulation No. VIII of 1827, and if granted after the first day of May 1889, having the debt specified therein."

It will be noted that under clause (b) no application for execution of a decree held by a deceased can be made unless the person claiming on succession to be entitled to the effects of the deceased produces a succession certificate or any of the grants enumerated in section 214(1) of the Succession Act. This view has been consistently upheld in several decisions of the various High Courts in pre‑Partition India. I would in this connection refer to Bhagwan Manaji Marwadi and others v. Hiraji Premaji Marwadi (A I R 1932 Dom. 516) in which it was held that a son cannot execute a decree obtained by his deceased father unless he obtains a succession certificate. The High Court of Bombay reiterated this view in Abdul Majid and others v. Shamsherali Fakruddin (A I R 1940 Dom. 285) in which it was further held that the necessity for a succession certificate to enable the legal representatives of a deceased decree‑holder to execute a decree cannot be waived even with the consent of the parties. The same view has prevailed in the High Courts at Calcutta, Patna, Nagpur, Travancore‑Cochin and in the Court of the Judicial Commissioner at Peshawar. Reference in this connection may be made to these cases Sccretary of State v. Girindra Nath Saha and others (A I R 1938 Cal. 445) Sri Sri Kalyani Prasad Singh Deo Bahadur v. Mahadev Roy and others (197 I C 461), Hari Chand Radha Kishan and another v. Tara Chand (A I R 1943 Pesh. 42), Jataobai v. Puranmal and others (A I R 1944 Nag. 243) and Narayana Pillai v. Eravi Narayana Panicker and others (AIR 1957 T C 147 ).

3. It was suggested, on the authority of the decisions in Muhammad Yusuf v. Abdur Rahim Bepari and others ((1899) 1 L R 2,6 Cal. 839), Kshetra Mohan Paddar and others v. Azizullah Mea and others (A I R 1920 Cal. 580), Ghulam Hussain v. Emperor (A I R 1936 Pesh. 16) and Raghubir Narain Singh v. Raj Rajesh wari Prasad Singh and others (A I R 1957 Pat. 435) that succession certificate is necessary only to bring the suit on a debt belonging to a deceased person but not for the purposes of executing the decree held by such deceased. I am unable to read this proposition in these decisions. What has been decided in these cases is that a succession certificate need not be obtained by the legal representatives of a decree‑holder if the decree‑holder dies during the pendency of the execution proceedings. This proposition has also been accepted by the Dacca High Court in .logendra Kishore Sarkar v. Gajendra Kumar Nandi an:i others (P L D 1960 Dacca 617) but this rule would not apply to cases where a decree‑holder dies before the institution of execution proceedings. In such cases, the clear terms of clause (b) of section 214(1) require the legal representatives of a deceased to obtain a succession certificate or any other grant mentioned in this section, before they could proceed with the execution of the decree. Even the proposition laid down in the foregoing decisions has been dissented from by the Nagpur High Court and by the High Court of Travancore Cochin. The Nagpur High Court held in Tejraj Rajmal Marwadi and others v. Rampyari (A I R 1938 Nag. 528) that succession certificate should be obtained by the legal representatives even in cases where the decree‑holder dies during the pendency of the execution proceedings. The High Court of Travancore‑Cochin took this view in the case reported as Thoma Chacko v. Koshi Varghese and another (A I R 1956 T C 183). However, for the purpose of the present appeal, it is not necessary to decide whether succession certificate or any other grant mentioned in section 214(1) of the Succession Act should be obtained even in cases where the decree‑holder dies during the pendency of the execution proceedings. This point does not arise for determination in this case. The position before me is that the decree‑holder, Khatija Begum, died after obtaining the decree but before she could take any proceedings in execution, and for such cases there is consensus of judicial opinion that the legal representatives should obtain succession certificate before proceeding with the execution of decree.

4. The question then arises as to whether the execution application in the present case should be dismissed for want of succession certificate in favour of Fazal Hussain and Zahur Ahmad. I am of the view that outright dismissal of the execution application for want of succession certificate is neither desirable nor necessary. The appropriate procedure for the executing Court would be to give time to the legal representatives of the deceased decree‑holder to obtain succession certificate or other necessary grant before proceeding with the execution of the decree. The Lower Appellate Court should, therefore, have followed this course instead of dismissing the appellants' execution application.

5. In view of these conclusions, I would accept the appeal and remand the case to the Lower Appellate Court with the following directions

(i) that the plea of adjustment the decretal amount against the respondent's claim or the claim of the firm in which the respondent is a partner cannot be accepted and should be rejected for the reasons stated above.

(ii) that Fazal Hussain and Zahur Ahmad should be given such time as may be necessary to obtain succession certificate or other necessary grant to enable them to proceed with the execution of the decree which was held by the deceased Khatija Begum ;

(iii) that the appeal of Fazal Hussain and Zahur Ahmad against the order of the executing Court dated 14‑9‑1964 should be heard and decided after they have obtained succession certificate or other necessary grant as aforesaid.

In the circumstances of this case, each party is left to bear its own costs.

A. E. Appeal accepted and case remanded.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.